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Divorce, or dissolution, as it is increasingly becoming known,
a legislatively created, judicially administered process that
legally terminates a marriage no longer considered viable by one
or both of the spouses and that permits both to remarry. Until
the divorce reform movement of the 1970s began to have an impact,
the legal doctrines governing divorce could be understood only
by reviewing the long history of English divorce law, which was
dominated by concepts of canon law.
II HISTORY Before 1857 in Britain, freedom to remarry could be
obtained only by an act of Parliament following a separation decree
given by an ecclesiastical court on the basis of some wrong (such
as adultery or abandonment) done by the defendant to the plaintiff.
This system, based on the premise that valid marriages may not
be dissolved, reflected the Roman Catholic origins of English
domestic-relations law.
The early American colonists brought this fault-based system
with them to the New World. Because they feared the moral dangers
posed by a married yet separated state, they made it possible
to obtain an absolute divorce, but only on the traditional English
grounds for separation. Basically, however, the conceptual and
legal structure of the marriage-dissolution system remained as
it had been created and maintained for a divorceless society.
Ecclesiastical courts were abolished in Britain in 1857, and
absolute divorce was then instituted. Incorporated into the law
of absolute divorce were the fault-based notions that had grown
up around separation. These notions continued to affect British
and American divorce law and administration for more than a century.
III DIVORCE IN THE U.S. Because of the traditional fault-based
view of divorce-that the "innocent and injured" spouse
should be able to obtain relief (that is, a divorce) from the
spouse who has done some wrong-almost every state divorce law
has in the past required the plaintiff to prove one of a number
of legislatively recognized grounds. Typical grounds have included
adultery (almost universally); desertion; habitual drunkenness;
conviction of a felony; impotence (carried over by many state
legislatures from annulment law); and, most commonly used by divorcing
parties, "cruel and inhuman treatment." Because the
state's interest in maintaining stable marriages was assumed,
divorce suits could not be treated like other litigation. One
spouse, the plaintiff, had to prove grounds even when both spouses
wanted the divorce. Thus, divorce trials were filled with charges
and countercharges and generally omitted investigation of the
actual viability of the marriage.
Moreover, the divorce system required that the plaintiff be
without fault; a variety of fault-based defenses were therefore
recognized. A plaintiff could be denied a divorce if guilty of
(1) condonation-that is, forgiving the defendant of the behavior
that provided grounds for divorce; (2) recrimination-plaintiffs
who had themselves given grounds for divorce were not entitled
to the help of a court (the result of this doctrine was that if
both parties wanted a divorce so badly that each provided grounds,
neither could terminate the marriage); (3) connivance-if the defendant's
misbehavior could in some fashion be laid at the door of the plaintiff,
that party was not entitled to a divorce; and (4) collusion-a
divorce could not be obtained by a plaintiff who had somehow conspired
with the defendant to provide evidence of grounds for divorce.
By the mid-20th century, most state legislatures had recognized
one or more no-fault grounds for divorce, usually consisting of
a substantial period (from one to five years) during which the
spouses had lived "separate and apart"; sometimes insanity
or incompatibility were acceptable grounds. Even these few no-fault
legislative provisions, however, were interpreted narrowly by
the courts; whenever possible, the fault-based notions of traditional
doctrine were read into no-fault legislation.
The realities of divorce litigation in the U.S., however, were
actually quite different from the legal requirements. Trial judges
and lawyers, pressed by a society that in fact wanted free divorce
and yet retained publicly the ideal of "until death do us
part," for many decades operated a legal system that permitted
spouses to terminate their marriages without proving grounds if
both parties wanted the divorce. This consensual-perjurious divorce
was obtained by having the plaintiff in effect lie about grounds
without objection from the defendant. As divorce became less stigmatizing
and as serial marriages became more common, the burden on lawyers
and judges to maintain a fictional fault-based divorce system
became even greater.
The grounds for divorce differed from one state to another; thus,
for example, before 1967 the only grounds for divorce in New York
State was adultery. Moreover, judicial and public attitudes toward
consensual-perjurious divorce varied from state to state. The
difficulty of obtaining a divorce in several of the more populous
eastern states, such as New York, New Jersey, Massachusetts, and
Pennsylvania, eventually led to a substantial amount of "migratory
divorce" in so-called divorce havens. For instance, a six-week
gambling sojourn in Reno, Nevada, could culminate in a divorce
and a return to the state of original domicile.
Before extensive legislative reform, some spouses living in states
where divorce was difficult to obtain would travel to jurisdictions
outside the continental United States (usually Mexico, Haiti,
or the Dominican Republic) for a divorce decree that had none
of the constitutional advantages, for purposes of local recognition,
of a decree from another state. New York State courts were the
only ones to extend formal recognition to Mexican divorce decrees,
which were popular because they could be obtained after only one
day's residence in that country by either spouse. This formal
acceptance by the courts of Mexican divorces was a recognition
of both the number of New York marriages dissolved in Mexico and
the unlikelihood of a change in the state divorce laws by the
legislature.
The system of migratory divorces was considered by many as discriminatory
against the poor, who could not afford to take up residence in
another state or travel to a foreign country in order to get a
divorce.
IV REFORM A divorce reform movement finally took place in the
early 1970s in Britain and the United States. The movement was
originally initiated by a group, assembled by the archbishop of
Canterbury, who proposed a single, no-fault ground that required
a judge to grant a divorce if he or she finds that the marriage
is "irretrievably broken." This proposal was accepted
by a study commission in California and enacted by that state's
legislature. Subsequently, the notion of irretrievable breakdown
was promulgated in the U.S. by the Uniform Marriage and Divorce
Act and appears to be gaining acceptance throughout the nation.
The phrasing of the no-fault principle has produced much controversy.
Many critics, pointing out that irretrievable breakdown is a vague
concept giving judges substantial discretion, have argued that
enactment of this standard will perpetuate sluggish divorce administration
by conservative courts, often at the expense of the poor and those
spouses whose behavior is not consistent with the values of the
judiciary. Others have complained that this standard allows "divorce
by consent" and that formal recognition of such easy divorce
will eventually undermine the stability of the nuclear family.
More than a decade after reform began, most observers seem satisfied
that these potential problems were overestimated. Although the
rate of divorce has increased in states that have reformed their
laws, there appears to be no basis for believing either that some
segments of the population have been treated in a discriminatory
manner or that the laws themselves have been responsible for increasing
divorce. In the mid-1980s, approximately one in three marriages
ended in divorce. A growing number of expert observers conclude
that this high divorce rate is due to a number of social changes
that are the cause rather than the consequence of divorce-law
reform. Among these changes are greater societal acceptance of
divorce; greater financial and emotional independence of women;
and, paradoxically, a greater belief in the emotional value of
marriage, which more readily disposes disappointed spouses to
divorce so as to seek a happier subsequent marriage.
In a divorce action, one spouse, usually the wife, may be granted
alimony or maintenance payments generally for a limited period
of time. The custody of any children may be awarded to either
spouse, with equitable regulations made for visiting rights and
support of the children. At present, joint-custody arrangements
are being worked out more and more frequently by divorcing parents.
V DIVORCE IN OTHER COUNTRIES The status of divorce in other nations
varies, often depending on prevailing religious beliefs. Among
Roman Catholics throughout the world, the traditional attitude
is that a true marriage (one entered into as a religious sacrament)
is indissoluble by legal means. Notwithstanding this strict interdiction
of divorce, many Roman Catholics procure divorces in the courts.
The Roman Catholic church views such divorces as merely a form
of legal separation, and remarriage is not permitted. In countries
where Protestantism is dominant, the doctrine that marriage is
indissoluble has been rejected. Philosophical theories and political
theories generally maintain that marriage is preeminently a civil
contract and that therefore it is subject to dissolution. Divorce
on various grounds is recognized among Buddhists and Muslims as
well. In Communist nations, which usually rejected formal religious
doctrine, divorce was normally easy to obtain.
*******
Separation, in the law of
domestic relations, either a separation agreement, that is, a
contract entered into between husband and wife by which they agree
to live apart; or a judicial separation, a court decree that separates
the parties to the marriage and provides for their living apart.
Separation does not dissolve the marriage relationship. A separation
agreement contains provisions for the custody and support of minor
children, as well as for the division of property between the
parties.
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